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Posner on Privacy: Who Cares?

Most sitting appellate judges are reluctant to express an opinion about the negligible worth of a constitutional right in a newspaper op-ed, if for no other reason than they may well be called upon to decide an issue and, having already announced they don’t care much for the right, have conclusively demonstrated their bias. Not Seventh Circuit Judge Richard Posner. Oh no, not Judge Posner.

This past Monday, Mayor Bloomberg said that in the wake of the Boston Marathon bombings, the country’s interpretation of the Constitution “will have to change” in order to enable more effective prevention of and response to terrorist attacks and other violence, such as attacks on schoolchildren.

All of which is to say that he wants concerns with privacy to take second place to concerns with security.

I strongly agree, though I’m not sure that the Constitution will have to be reinterpreted in order to enable the shift of emphasis that he (and I) favor. Neither the word “privacy” nor even the concept appears anywhere in the Constitution, and the current Supreme Court is highly sensitive, as it should be, to security needs. The Court can and doubtless will adjust the balance between privacy and security to reflect the increase in long-run threats to the lives of Americans.

Is this a return to textualism or a living Constitution? Some (like me) would argue that privacy pervades the Constitution, like the Fourth Amendment’s protection against unreasonable searches and seizures, but Poser disagrees. The word may not be there, but is it a stretch to conclude that the 1st, 3rd, 4th, 5th and 9th Amendments don’t relate, as the Supreme Court has held case after case, and protect our right to privacy? Posner thinks so.

There is a tendency to exaggerate the social value of privacy. I value my privacy as much as the next person, but there is a difference between what is valuable to an individual and what is valuable to society. Thirty-five years ago, when I was a law professor rather than a judge, I published an article called “The Right of Privacy,” in which I pointed out that “privacy” is really just a euphemism for concealment, for hiding specific things about ourselves from others.

While he may say so, I doubt he values his privacy as much as the next person. He doesn’t value privacy as much as I do. Probably not you as well. The problem for Posner is his understanding of privacy, “a euphemism for concealment.” What a negative perspective.

It strikes me that Posner is projecting when he defines privacy so insidiously. Sure, there are things people prefer to conceal, like the occasional passing of wind when outside of polite company, but it’s not just a matter of hiding one’s embarrassment as it is not offending others. No one wants to be in an elevator with a guy who feels it’s not worth concealing.

We conceal aspects of our person, our conduct and our history that, if known, would make it more difficult for us to achieve our personal goals. We don’t want our arrest record to be made public; our medical history to be made public; our peccadilloes to be made public; and so on. We want to present sanitized versions of ourselves to the world. We market ourselves the way sellers of consumer products market their wares — highlighting the good, hiding the bad.

All this may be true, but this ignores another side of privacy that has nothing to do with concealment. It ignores modesty. It ignores humility. It ignores the desire to preserve the sanctity of ones thoughts from being on public display. It’s not that we can’t conduct ourselves well and properly in public, but that we are entitled to a quiet time when we aren’t on display. It’s not that we have anything to conceal, but want the opportunity to indulge our peccadilloes, whatever they may be.

For the most part, the op-ed makes it appear that Posner is only talking about video cameras on every street corner, every building, constantly watching our every public move. The argument in favor of such surveillance is much like the argument for videotaping police in the performance of their duty. They’re in public, where we are lawfully entitled to watch them, so no harm done.

But there is a difference. We are what the government euphemistically calls “private citizens.” The police, in contrast, are called “public servants,” also euphemistically. Both words begin with “P”, but fall on opposite ends of the spectrum. While it may be true that our public actions are generally observable, it’s also true that there is no good reason to keep private citizens under constant surveillance. Our every movement isn’t anybody’s business.

Even so, if this was as far as Posner was prepared to go, there would be sound argument to allow it, provided one embraced the whole post 9/11 “everything has changed” rhetoric, particularly given that video caught the Boston Bombers. This proves that if we were all bombers, it would make perfect sense. But is that all Posner is talking about?

Civil liberties groups, notably the Electronic Frontier Foundation and the Electronic Privacy Information Center, of course do not limit their concerns to surveillance cameras. They worry, too, about governmental surveillance of people’s computer files and other stored data.

But I don’t think they appreciate that this is a two-way street. Surveillance technology used by our government is also used by our enemies. We must keep up; we cannot resign from the technological revolution.

The cameras on every corner appear to be the start of the death of privacy. Your hard drive? The cloud? Server farms in Maryland? That’s where the really good secrets are hidden, and the government needs them to protect us from our enemies. Remember that technology train we all have to hop on or miss? Nobody realizes that Judge Posner is driving that train.

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14 comments on “Posner on Privacy: Who Cares?”

In 1879 Brandeis began a partnership with his classmate Samuel D. Warren. Together they wrote one of the most famous law articles in history, “The Right to Privacy,” published in the December 1890 Harvard Law Review. In it Brandeis enunciated the view he later echoed in the Supreme Court case of Olmstead v. United States (1928), in which he argued that the makers of the Constitution, as evidence of their effort “to protect Americans in their beliefs, their thoughts, their emotions and their sensations … conferred, as against the Government, the right to be let alone–the most comprehensive of rights and the right most valued by civilized men.”

BTW, is the building where Posner’s offices are one that forbids camera access?

somehow i am not surprised that someone who has publicly suggested in writing that the best way to discourage abortion is giving women the right to sell unwanted babies would have a dim view of privacy.

Critics of Judge Posner simply don’t understand the seriousness of our world. Our police, our legislators, our judges, anyone in government has to have a high level of privacy, because they deal with information that could be valuable to our enemies. The average citizen, on the other hand, should be happy in assisting the government in providing full access to every intimate detail of their lives; this is all to protect them from our enemies. People who oppose this open society are dupes of our enemies (at best) or in league with our foes, and so their opinions and concerns must be ignored for the safety of all of us.

Are you with us, or against us? Why do you hate America?

Judge Posner is a 110% American, who is forced (because of his position) to maintain some privacy, at great personal cost to others.

“Surveillance technology used by our government is also used by our enemies. We must keep up; we cannot resign from the technological revolution.”

So because the commies (OK, maybe I’m dating myself) spy on the government, it’s important for the government to spy on everyone here? Does Posner really think readers of the Daily News are that stupid? (And if so, he’s dating himself; the News hasn’t been the tabloid of the great unwashed for decades.) Or is he suggesting that we need to spy on everyone in order to make sure our technology is capable of spying on Kim Jong whoever – sort of the way we used to (?) conduct underground nuclear tests to make sure the technology was good.

The whole comment is basically a reimagining of the idea that “if you don’t have anything to hide…” As you point out, Posner seems to think people only hide bad things about themselves. He concedes that the concealment of some bad things is justified, although suggests that such a justification is based on a paternalistic view of the world.

I don’t want people to know my salary or my finances, but not due to embarassment. I don’t want people to be able to read my personal communications with my husband, not because they are salacious or would prevent me from getting ahead, but because they are personal. Same with my anonymous donations to charity. Maybe I don’t want people to know who my parents are because I want to succeed on my own terms, or to know my medical issues because I don’t want them to feel sorry for me. None of these aversions to publicity are based on a paternalistic skepticism of whether people can make an appropriate evaluation of private information.

However, I think just saying: “we conceal ‘good’ things too” gives too much away. It’s easy to say that I should be allowed to keep the ‘good’ things I want to be private, private. The entitlement to privacy should go further. If I want to live my life as a normal person, which means maybe pick my nose or a wedgie in private, have an email fight with my spouse, complain about my boss in a way I would never want him or her to hear, talk about a friend behind his or her back, or even (to take this to place many politicians should consider) have an affair, I should be able to do those things and not fear that they will be exposed to the world by the government’s forced intrusion into my business. What is deserving of protection is not the act concealed, but the right to privacy itself. So what if I want to present a sanitized version of myself to the world; that is what normal people should be entitled to do.

I think a fundamental right, one which is also addressed by the 2d amendment, is that the country (USA) and its
government is not the same. Many people would like to see laws changed, yet the act of change may expose us to the wrath of the government. Privacy is the key factors that would allow people to discuss possible changes in the laws of the country, without being intimidated by officials, corporations or people holding different views.

It’s an easy position for Posner to take. He- and his peers- will never get strip-searched on the side of the road. He won’t have his personal effects tossed through on a sidewalk as he attempts to go to work. When he interacts with other public officials, it’s “yes, Judge Posner” and “no, Judge Posner.” It’s not “get on the fucking ground!”

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Scott H. Greenfield

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